From: "John Hurst", [EMAIL PROTECTED]
Tell me this, how do politicians justify their existance and salary? In the
same way as the police, and everyone else.
The answer is, of course, by appearing to be busy doing something
productive. How many of the laws currently being proposed are actually
needed? How many are just "fine tuning" of Hundred year old laws, fine tuned
to the point of insanity by the parliment and the courts? (And clever
lawyers.)
Perhaps it is time to stop producing dozens of new laws, and concentrate on
getting the ones we have had for hundreds of years right, and just getting
the new ones somewhere near right first time?
Nigel,
The author of the following article would probably agree with
you, and so do I.
Regards, John Hurst.
============================================================
The Common Law: Tradition & Stare Decisis.
"I now deal with a species of law known as the common law. Common law is law
that comes from the common people, vers, legislation, which, comes from the
"experts."
It took a long time to learn the true nature and office of governments; to
discover and secure the principles commonly indicated by such terms as
'Magna Carta,' the 'Bill of Rights,' 'Habeas Corpus,' and the 'Right of
trial by jury;' to found the family home, with its laws of social order,
regulating the rights and duties of each member of it, so that the music at
the domestic hearth might flow on without discord; the household gods so
securely planted that 'Though the wind and the rain might enter, the king
could not'.
It took a long time to learn that war was a foolish and cruel method of
settling international differences as compared with arbitration; to learn
that piracy was less profitable than a liberal commerce; that unpaid labour
was not as good as well-requited toil; that a splenetic old woman, falling
into trances and shrieking prophecies, was a fit subject for the asylum
rather than to be burned as a witch.
It took a long, long time after the art of printing had been perfected
before we learned the priceless value, the sovereign dignity and usefulness
of a free press.
But these lessons have been taught and learned; taught for the most part by
the prophets of our race, men living in advance of their age, and understood
only by the succeeding generations. But you have the inheritance.
The common law is a great scientific lab, the resources and results of which
are brought to bear on the populations which are fortunate enough to possess
an English common law tradition, such as exists, for example, in: Canada,
the United States and Australia. My use of the adjective, "scientific," will
be better appreciated after one reads my essay, Siren's Song. Sufficient to
say here, at this place, that nature is the great and ultimate scientific
testing lab, and it always, in time, shakes out the truth. Whether we
appreciate it, or not, for hundreds of years: the common law tests,
observes, adjusts and re-observes on a continual basis.
The fact of the matter is that there exists all around us a great body of
law which has not ever been (nor could it be) written down in one spot. In a
way, it's more of a process which has a single guiding rule, the "golden
rule," a negative rule: "Don't do something to someone that you don't want
to have visited on yourself, either directly or through the agency of a
government." Though it has suffered much at the hands of legislators, common
law is yet followed in all major English speaking nations around the world.
Common law to England was and is its very force. The greatness of England,
certainly in the past, is attributable, I would say fully attributable, to
the stabilising and enriching institution that we have come to know as
common law. This subject of the common law is a great and wonderful subject:
its evolutionary development and its great benefits make it the most
superior law system known in the world, as history will readily tell. The
common law is as a result of a natural sequence, which hardened first into
custom and then into law. It did not come about as an act of will, but as an
act of some group aware only of the instant moment, unaware of the nature
and history of man. It came about as a result of a seamless and continual
development, through processes we can hardly begin to understand; it evolved
along with man.
Primitive man knew nothing of laws, all he knew was custom. Custom, or
tradition, evolved into rules for living. They grew spontaneously, viz., not
deliberately designed by some particular human mind. While no one can point
o the origins of our traditional moral rules, their function in human
society is clear enough. These moral rules, or traditions, are necessary to
preserve the existing state of affairs; such that culture was allowed to
evolve; and in turn, with culture, civilisations came about.
Thus, as David Hume wrote, man developed in an evolutionary fashion-not only
biologically, but also culturally. That, like the lot of all animals, man
evolved in accordance with certain natural rules, in that "no form can
persist unless it possesses those powers and organs necessary for its
subsistence: some new order or economy must be tried and so on, without
intermission; until at last some order, which can support and maintain
itself, is fallen upon."
The preservation of existing laws, as was represented by traditions and
cultural rules to early man at least, was of greater concern than putting up
with bad laws: change was what men feared: change and its social upheaval
was what brought on suffering and death. I quote from Bagehot's work:
"In early societies it matters much more that the law should be fixed than
that it should be good. Any law which the people of ignorant times enact is
sure to involve many misconceptions, and to cause many evils. Perfection in
legislation is not to be looked for, and is not, indeed, much wanted in a
rude, painful, confined life. But such an age covets fixity. That men should
enjoy the fruits of their labour, that the law of property should be known,
that the law of marriage should be known, that the whole course of life
should be kept in a calculable track, is the summum bonum of early ages, the
first desire of semi-civilised mankind. In that age men do not want to have
their laws adapted, but to have their laws steady. The passions are so
powerful, force so eager, the social bond so weak, that the august spectacle
of an all but unalterable law is necessary to preserve society. In the early
stages of human society all change is thought an evil. And most change is an
evil. The conditions of life are so simple and so unvarying that any decent
sort of rules suffice, so long as men know what they are. Custom is the
first check on tyranny; that fixed routine of social life at which modern
innovations have, and by which modern improvement is impeded, is the
primitive check on base power. The perception of political expediency has
then hardly begun; the sense of abstract justice is weak and vague; and a
rigid adherence to the fixed mould of transmitted usage is essential to an
unmarred, unspoiled, unbroken life".
Walter Bagehot, The English Constitution, at pp. 229-30.
Stare Decisis:- This idea, as expressed by Bagehot, is picked up in the law
as it exists today. When a court decides a case it does so on the merits of
the case before it. The court's decision is meant to only effect the rights
of the parties, the litigants, before it. The court, however, is obliged to
apply settled principles of law. The decision of any respected court amounts
to a recap of the law needed to resolve the case before it. The law as it is
used in the particular case has a universal applicability to all future
cases embracing similar facts, and involving the same or analogous
principles. These decisions, many being years and years old, thus became
statements of law, to be applied by all courts when measuring the private
and public rights of citizens. It is this stream of cases, within the arc of
the great pendulum of time, which changes the banks of the law: the common
law, thus, as it turns out, is a living, creeping, creature.
Do not, however, be mistaken - there is a conscious effort by those involved
(lawyers and judges) to keep the law pure: not to change it, but to apply
it. This principle is called stare decisis, Latin, which literally
translated means, "stand by things decided." Stare decisis has come to us as
a most sacred rule of law. A judge is to apply the law as it is presented to
him through the previous decisions of the court; it is not the judge's
function to make or remake the law, that is the function of the legislature.
However, judges do make law even though they try not to; indeed it is their
function, under a system of common law, to do so; but not consciously and
only over the course of time, many years, as numerous similar cases are
heard and decided.
The common law has been and is built up like pearls in an oyster, slowly and
always in response to some small personal aggravation, infinitesimal layer
after infinitesimal layer. It is built up upon the adjudications of courts:
"...built up as it has been by the long continued and arduous labours, grown
venerable with years, and interwoven as it has become with the interests,
the habits, and the opinions of the people. Without the common law a court
would in each recurring case, have to enter upon its examination and
decision as if all were new, without any aid from the experience of the
past, or the benefit of any established principle or settled law. Each case
with its decision being thus limited as law to itself alone, would in turn
pass away and be forgotten, leaving behind it no record of principle
established, or light to guide, or rule to govern the future."
Hanford v. Archer, 4 Hill, 321.
Tyrants can only get a hold of a central system where the rules issue from a
single authority (government); tyrants cannot get a hold of a system which
depends on a spontaneous participation in the law-making process on the part
of each and all of the inhabitants of a country, viz, a system of common
law".
Stare Decisis.by Peter Landry.
"Man is a maker of things, and a property owning animal... From the right
to self-defence and protection of property comes the right to the rule of
law, and a multitude of like rights, such as the right to privacy expressed
as 'An Englishman's home is his castle'. A ruler is legitimate only in so
far as he upholds the law. A ruler that violates the law is illegitimate.
He has no right to be obeyed; his commands are mere force and coercion.
Rulers who act lawlessly, whose laws are unlawful, are mere criminals."
John Locke.
"The Rights of the people had been confirmed by early Kings both before and
after the Norman line began. Accordingly, the people have always had the
same title to their liberties and properties that England's Kings have unto
their Crowns. The several Charters of the people's rights, most
particularly Magna Carta, were not grants from the King, but recognition's
by the King of rights that have been reserved or that appertained unto us by
common law and immemorial custom."
Sir Robert Howard, a member of the Committee's which prepared the Bill of
Rights.
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